Are there entities even more powerful than the government that should be held accountable for violating First Amendment Rights? (Part 2)

The First Amendment applies to the government — to protect individuals from government censorship. While the text of the First Amendment says “Congress shall make no law … abridging the freedom of speech,” it means that no federal, state or local government official can infringe on your free-speech rights. A private company is not a government or state and therefore generally is not subject to the requirements of the First Amendment.

This past week I posted a question on LinkedIn in which I asked the question “Do social networks either by accident or design violate our First Amendment Rights?”

Of course I very well understood the true nature of the Amendment and that it only applies to a government suppression of free speech and did not extend to include private companies or individuals.

That said I wanted to test the proverbial waters as to what kind of response would be forthcoming with the suggestion that there are perhaps entities whose freedom to suppress and censure have far reaching and negative consequences on society that go beyond even that of a government’s oppression.

After all isn’t the media and communication channels the first and primary target in a coup relative to a hostile government’s effort to gain control over what the populace does or does not hear?

In short, and if the First Amendment is designed to prevent an all-powerful government from squashing our rights as citizens, should the same rules apply to those whose influence is no less imposing? Or to put it another way, is protecting our rights any less important if the greatest threat comes from someone other than the government?

If you think about the above in the context of the growing influence of social networks and social media such as a Facebook or for that matter even a Twitter, who is responsible for ensuring that the communication channels in which we have an increasing reliance are kept clear of self-serving rules and/or restrictions?

This is perhaps one of the reasons why the recent controversy surrounding Twitter’s revelation that they would censure Tweets was so disconcerting.

In fact, the following exchange I had with Jillian C. York, who is the Director of International Freedom of Expression at the Electronic Frontier Foundation regarding her criticism of Mark Gibbs’ Forbes article on the Twitter announcement, speaks to this very issue:

Jillian York:

Mark,

You say: “wouldn’t you think that what Twitter writes in its own official blog would be what they mean and not require spin clarification”

In fact, as someone who’s been closely following the press on this issue, I can say that Twitter’s post was abundantly clear to most journalists – you seem to be the only one who failed to check with Twitter or other experts on the subject, instead making wild fear-mongering claims.

The question I have Jillian is who determines if it is valid and properly scoped?

Also, and citing the Iranian election and resulting riots . . . what happens if under a similar circumstance that government sees the sharing of information and yes even opinion as being seditious and seeks to block tweets. Is this not a valid and properly scoped situation from their perspective?

After all, law or policy is not equitable unless it is evenly applied across the board, and the issue I have is that there is a subjective element to what Twitter is presenting that is disconcerting in that some unknown person or entity can and perhaps will intercede with regard to the free flow of information.

Jillian York:

Agree that Twitter–and other companies that operate internationally–need a better set of guidelines to follow than simply asking us to trust them to make the right decision. At this current moment, no such guidelines exist.

That said, I highly doubt Twitter–at least under its current management–will abuse their abilities. These new policies seem mostly geared toward European countries in which they have–or plan to open–offices.

Jon Hansen:

While at this point I do not share your same level of confidence in terms of Twitter’s management making the right decisions Jillian – and I am not suggesting any nefarious or hidden agenda on Twitter’s part, international affairs are extremely complex as you well know and often times in the absence of clearly defined guidelines even the most experienced in the field can become an unwilling dupe to a government’s innate instincts for self-preservation or achieving its self-serving aims. Hence the reference to Chamberlain.

Even on this side of the pond there is a history that clearly supports the “constitution is not a suicide pact” mindset such as with the FLQ crisis in Canada when the War Measures Act was enacted, or going even further back to your Civil War when Lincoln suspended habeas corpus.

As Richard Posner pointed out in his 2006 book titled Not a Suicide Pact: The Constitution in a Time of National Emergency, “the scope of constitutional rights must be adjusted in a pragmatic but rational manner.”

With Twitter’s role to this point in time being that of a neutral player, and in much the same way that justice is supposed to be blind, they are forfeiting the objective high ground of free and unencumbered access for all to assume a role and responsibility for which they are ill equipped to handle.

One of the real questions for me behind the press release and interviews is why do this now?

So here is a variation of the same question I asked this past week but, with the added knowledge that social networks are not merely a public gathering place (virtually speaking), but are instead a venue in which their scope of influence can and likely will impact societal interests in a very real and meaningful way . . . if as indicated above a Twitter can in fact censure based on factors such as government influence, business interests etc. then is it reasonable to view them in the same light as a government and therefore recognize that our First Amendment Rights can in fact be violated?

2 responses to “Are there entities even more powerful than the government that should be held accountable for violating First Amendment Rights? (Part 2)”

In her haste to claim some sort of journalistic high ground over my misunderstanding of Twitter’s blog posting, York allowed the big issue in Twitter’s announcement to be glossed over. This issue is that Twitter is willing and apparently proud to act as a censor on demand.

My problem with this position is that Twitter is, in effect, saying they’ll do whatever it takes to do business and free speech be damned. While Twitter, as a private company, quite obviously has that right, the issue for their users, particularly those in less free countries than the US, is that they no longer have certainty that their voices will always be heard. This lack of certainty, in turn, damages Twitter’s brand and reduces the service’s social relevance.

Here is a question, if Twitter at the request of a Government censors Tweets do they in fact become an agent of the government. And if for example the request is from the US Government, should they not be held accountable for violating First Amendment Rights?